In a nutshell, legal tradition is the basis or historical root of a country’s legal system. There are two major legal traditions – the Common law and Civil law traditions. Each tradition has different source, concept, rule and development history. The adoptions of legal traditions in certain countries are largely affected by their historical background as well. John Henry Merryman (as cited in O’Connor, 2012, p.8) defined “legal tradition” as “a set deep rooted, historically conditioned attitudes about the nature of law, about the role of law in the society….
English law works on a common law system, as opposed to a civil law system, which relies on statute and certain texts. The origins of common law is highly debated but one explanation is verbally agreed on. Common law is an invention of the English courts: the Kings Bench, the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts. Judges create the common law by delivering written judgments about the cases before them. If, for example, Magistrates’ Courts across England and Wales were able to make and follow their own precedent, this would create a huge variation in local and regional customs that could mean that local regimes are barely recognisable from one another.
Nevertheless, the application of the law is subject for two limitations where it is only applied in the absence of local statutes on particular matters and just certain part of the English law that is suited for local circumstances will be applied. Sections 3(1) and 5(1) of the Civil Law Act 1956 specifically permit the reception of English common law and equity in Malaysia subject to the limitations contained there. English Common Law is mainly made up of non-written laws, which the ones that the precedents had derived from judgments given on real cases by the judges. It can be divided into two which are the English Commercial Law and English Land Law. In section 5(1) of the Civil Law Act 1956 provides that The English Commercial Law is applicable in Peninsular Malaysia except Penang and Malacca as it stood on 7th April 1956 in the absence of local legislation.
Savigny, the pioneer of the historical school of jurisprudence, prioritized the general will of the people. Jurisprudence, means the “knowledge of law”. Jurisprudence is the science that imparts to us the knowledge of law. The volksgeist theory is concerned with the historical school of jurisprudence. This theory tells us that the while making the law or legal system, the traditions, customs, general consciousness, behavior, etc.
Instead they made it possible to obtain in the one court both legal and equitable remedies, which previously required a visit to both courts to acquire a complete remedy. Yet the Acts did establish the supremacy of equity by providing that wherever there is any conflict or difference between the rules of equity and the rules of common law in regard to the same subject matter, the rules of equity shall prevail. As a result of a decision made by King James I, ‘where equity and law conflict, equity shall prevail’ this maxim of equity was established and is now preserved in s.49 of the Supreme Court Act 1981 . Common law is a form of law developed by judges by the use of court decisions and
Just as in other countries, the law in Malaysia can be found not only in legislation, but also in cases decided by the courts. The courts in question are the Federal Court, the Court of Appeal, and the two High Courts. This is because only decisions of superior courts are sources of law as they are the courts that decide on matters of law whereas lower courts generally discuss on matters of fact. Decisions of the higher courts are binding to the lower courts which is known as stare decisis. Stare decisis is a latin term which means to stand by what has been decided.
The organisation of the legal profession into the bar (advocates) and side bar (attorneys) is also based on the British model. Some South African legislation, such as the Insolvency Act, is based on the British equivalent. The influence of English constitutional law is especially important. The Constitution of the Union, as well as the Constitutions of the later Republic of South Africa in 1961 and 1993, regulated the organisation and functioning of the state and its institutions according to English law. With reference to precedent the courts in their decisions sometimes applied English doctrines, particularly in the areas of the law of contract and delict.
As a new independence country, Malaysian foreign policy was geared towards the survival. Malaysia take a step by becoming an anti-communist and pro-western which can be seen with the relationship with western countries, the Commonwealth countries, Non-Aligned Movement countries and also other Islamic states. Besides, in order to strengthen the economy and security, Malaysia cooperate with other countries by becoming part of ASA in 1960, MAPHILINDO in 1963 and also ASEAN in
English law became the law of the land through the implementation of the Charters of Justices in 1807 and in 1826. The Charters established a judicial system and made the English common law applicable to the inhabitants of the land so far as religion and customs permit. In Penang, the First Charter of Justice of 1807 introduced the first ever judicial court which had similar jurisdictions as the courts in England and in 1826, the Second Charter of Justice was introduced into the 3 states of the Straits Settlements which had minor amendments. With the above as an introduction, I agree with the statement as I believe that the introduction of English Law in the Straits Settlements had reversed
Malaysia practices a variety of law. The law is practiced in this country are as customary law, common law and Islamic law. Tradition and culture are also an important source of law in our country which is a source in the court case. History of the existence of law in our country has begun before the country reached independence. Sources of law in Malaysia is divided into two, namely the written laws and unwritten.